The Kentucky Supreme Court is weighing the future of abortion access


FRANKFORT, Kentucky (AP) — A week after Kentucky voters rejected a ballot measure against abortion, the state Supreme Court on Tuesday weighed the constitutionality of a state legislature-approved statewide ban in a case that appears destined to be a crucial moment for abortion to become rights in the state.

A lawyer defending the abortion ban urged the court to “not use a Kentucky version of Roe v. to create Wade”. An attorney for two abortion clinics challenging the ban countered that state voters “refused to remove abortion protections from our constitution.”

The case is the first legal test since voters in Kentucky and three other states signaled their support for abortion rights in midterm elections last week. Kentucky voters rejected a voting measure that would have denied abortion rights in the state’s constitution.

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The court hearing at the Kentucky Capitol has been closed to the public amid heightened security. In the face of the ballot rejection, pro-choice advocates rallied near the courtroom and chanted, “No means no.”

Abortion advocates are asking the state’s highest court to temporarily block the abortion ban while the case goes through trial.

The defeat of the anti-abortion amendment was raised within minutes of the hearing. Deputy Chief Justice Lisabeth T. Hughes called such voting measures “the purest form of democracy” and urged the attorney defending the abortion ban to explain why the vote shouldn’t have any effect.

Attorney General Matthew Kuhn, representative for the attorney general’s office, said the defeat of the measure did not change the existing constitutional language nor the lack of any “historical evidence” to suggest the state constitution protects abortion.

“When it comes to abortion, our constitution here in Kentucky is just silent,” Kuhn told the judges during the more than hour-long hearing.

That means the decision on the issue of access to abortion is left to the legislature, he said.

Heather Gatnarek, an attorney for the American Civil Liberties Union of Kentucky, said the ban forced women “to stay pregnant against their will.” She said the right to privacy has been consistently recognized as an integral part of the country’s constitutional guarantees of liberty.

“Our constitutional protections can be stretched further than the federal constitution allows, and that’s especially true with the right to privacy,” she said.

Kentucky judges reviewed a challenge to the state’s trigger statute, which banned nearly all abortions and went into effect after Roe v. Wade was overturned by the US Supreme Court in June. The law, passed in 2019, provides narrow exceptions to save a pregnant woman’s life or prevent disability.

Judge Hughes said the Supreme Court has never determined whether the Kentucky Constitution allows for a total ban on abortion.

“And that’s what we have now, basically a total abortion ban,” she said. “It knows no exception for rape and incest. It recognizes no exception for women who are under the care of a doctor who tells them that the standard of care is to terminate the pregnancy.”

What effect, if any, the defeat of the anti-abortion measure will have on Kentucky law was the subject of intense debate in the days leading up to the hearing.

Gov. Andy Beshear, a Democrat, expressed hope that the state’s highest court “will listen to the will of the people and know that the people have rejected extremism and are governing accordingly.”

Republican Attorney General Daniel Cameron, whose office is defending the statewide ban in court, continued to assert that there is “no right to abortion in the Kentucky Constitution.” He said abortion policy should be left to the state legislature, where GOP majorities have passed a number of anti-abortion measures in recent years. Cameron is among several Republicans trying to challenge Beshear’s 2023 reelection bid.

The hearing comes a week after abortion rights advocates won every state poll put to voters in the midterm elections. Michigan, California and Vermont voted to enshrine abortion rights in their state constitutions. Montana voters rejected a voting measure that would have forced medical workers to take life-saving measures in the rare event that a baby is born after an attempted abortion.

In Kentucky, the abortion case worked its way through lower courts before reaching the Supreme Court as the referendum battle unfolded. In July, a Louisville judge said the new Roe abortion bans likely violate “rights to privacy and self-determination” protected by the Kentucky Constitution. Judge Mitch Perry said it is not the court’s job to determine whether the state’s constitution contains the right to abortion, but rather whether the state’s restrictive laws violate constitutionally guaranteed freedoms.

The near-total abortion ban was reinstated after an appeal to the Intermediate State Court of Appeals. The state Supreme Court later chose to uphold the abortion ban while reviewing the case, putting abortions on hold in Kentucky and forcing women who could afford the procedure to look elsewhere. A separate six-week ban approved by Kentucky lawmakers is also being contested by the two remaining abortion clinics in the state of Bluegrass — both in Louisville, the state’s largest city.

A year ago, Kentucky lawmakers added the anti-abortion amendment to the 2022 general election list, as anti-abortionists hoped to cut off a legal path to restoring abortion rights. The measure would have declared that the state constitution does not protect the right to an abortion.

Now that the amendment has been rejected, the stakes are high.

“This case is almost certainly the only realistic way to protect abortion rights in Kentucky for the foreseeable future,” University of Louisville law professor Samuel Marcosson said before the hearing.

The AP’s full coverage of the fall of Roe v. Wade can be found at:

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